SENE AND ANOTHER vs. THE REPUBLIC [1977]DLCA1427

Date	1976-12-31
Suit No.	-
Citation No.	[1977]DLCA1427

AMISSAH JA

JIAGGE JA

ARCHER J.A

NARH FOR THE FIRST APPELLANT.

KOCUVI TAY FOR THE SECOND APPELLANT.

MRS. J. BAMFORD ADDO PRINCIPAL STATE ATTORNEY FOR THE RESPONDENT.

[1977]DLCA1427
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													<main id="main" class="content" style="min-height: 60rem" >SENE AND ANOTHER <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977]1 GLR 434<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
31 DECEMBER
1976<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

NARH FOR THE FIRST APPELLANT.<o:p></o:p>

KOCUVI TAY FOR THE SECOND APPELLANT.<o:p></o:p>

MRS. J. BAMFORD ADDO, PRINCIPAL STATE ATTORNEY,
FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMISSAH, JIAGGE AND ARCHER JJ.A,<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>The
appellants are brothers. They were convicted of the murder of one William Kwame
Kwadam. The story which the jury must have accepted was that the first
appellant engaged in an unlawful fight with the deceased and that in the course
of the fight, the second appellant threw a heavy stone at the deceased from the
back. That after he had been felled by the stone, the first appellant continued
raining blows on him.<o:p></o:p><o:p>&nbsp;</o:p>The
deceased subsequently died from injuries ascribed to the appellants into attack
on him.<o:p></o:p>Various
criticisms have been levelled in this court at the summing-up of the judge.
None of them is of substance to detain us except the criticisms as to the
learned trial judge’s treatment of the question of intent and his lack of
treatment of the issue of provocation. If it is accepted that the deceased died
as a result of an unlawful fight with the appellants, then the question is
whether the appellants had an intention to cause his death. The question at
issue was nicely put in R. v. Gyamfi [1960] G.L.R. 45 at p.51, C.A., when
Granville Sharp J.A. speaking for the Court of Appeal, said: “There can be no
doubt that the appellant caused the death of Oppong by unlawful harm; but the
question arising for further consideration was, was the act done in the
consciousness that it was likely to cause death?’ “<o:p></o:p>It is not
always easy where death has resulted from a fight to give a clear direction to
a jury of the considerations that the jury should take into account in order to
determine the fate of persons accused of murder on account of their
participation in the fight. For the fact-situation may lend itself to a range
of interpretations supporting a verdict which may be not guilty, guilty of
manslaughter or guilty of murder. The accused would not be guilty of any
offence if they engaged in what turned out to be a fight in necessary
self-defence of lives or property. That aspect of the matter was adequately
dealt with by the judge in this case. Then come the situations when the accused
may be held criminally responsible for the death, the possible verdicts being
murder or manslaughter.<o:p></o:p><o:p>&nbsp;</o:p>The one
important factor which distinguishes the case of murder from manslaughter is
the intention. The two offences are often difficult to distinguish. As was said
long ago by Pollock C.B. in R. v. Vamplew (1862) 3 F. &amp; F. 520 at p. 522:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
crimes of murder and of manslaughter are in some instances very difficult of
distinction. The distinction which seems most reasonable consists in the
consciousness that the act done was one which was likely to cause death. No one
however, could commit murder without that consciousness.”<o:p></o:p><o:p>&nbsp;</o:p>The
learned judge had the difficult duty in this case of explaining to the jury
what would amount to an intention to kill. And after giving them the usual
direction that it was not always possible to prove intention by direct
evidence, went about his task in respect of the first appellant in this manner:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
evidence of the first prosecution witness who is admitted to have been present
when the incident occurred may seem to suggest that it was the first accused
who provoked the deceased into fighting. If you believe that story and the
deceased hit back and the accused persons beat him to death, you may return a
verdict of murder. Consider carefully whether there was a fight and if so who
sta</main>